Mueller Investigation

“He Had No Choice”: Giuliani’s Meltdown Foreshadows Another Russia Bombshell

The president’s lawyer offers a stunning new legal defense—and suggests that collusion is more than fake news. “If it is a witch hunt, Mueller found a coven,” says a former Justice Department official following the case. “So he’s pivoting to a different fallback argument.”

Watching Rudy Giuliani’s latest televised confessional on Wednesday, one Washington defense attorney called to express his astonishment at the spectacle of Donald Trump’s personal attorney intimating that perhaps the Trump campaign had colluded with Russia, after all. “I think it is long past due that we disregard anything he says about the law because I think he is confused,” the attorney said of Giuliani. “If he ever knew anything about it, he doesn’t remember.”

The interview was indeed baffling: over the course of a prolonged, heated exchange with Chris Cuomo on CNN, Giuliani claimed that he “never said there was no collusion between the campaign or between people in the campaign”; that if there was any collusion, “it happened a long time ago”; and argued that the “only crime you could commit here” would have been if the president had “conspired with the Russians to hack the D.N.C.”

It was, several legal experts observed, an astonishing act of expectation management. “Whatever Giuliani’s motives for going on a show with Chris Cuomo, he’s clearly looking to sharply redefine the issue in the Russia collusion case,” said Bob Bauer, former White House general counsel to Barack Obama. During the campaign through the first several months of the Mueller probe, Trump and his allies were insistent that there had been “no contact” with any Russians and certainly “no collusion” to influence the 2016 election. Over the past year, however, those claims have broken down in the face of overwhelming evidence to the contrary. At least 16 Trump associates had contacts with Russians during the campaign or transition, amounting to more than 100 contacts with Russian-linked officials, according to various reports. Court filings in federal cases involving Trump’s former campaign chairman, former lawyer, and national security adviser, among many others, all paint a portrait of a sweeping Russian influence campaign.

On Thursday, Giuliani appeared to concede that some Trump associates might have coordinated their efforts with Russian agents, telling CNN: “Neither he nor I can possibly know what everyone on the campaign was doing.”

Neal Katyal, a former acting solicitor general in the Obama administration, suggested that Giuliani’s prime-time interview—while rambling and inarticulate—represented a calculated shift in Trump’s legal strategy: “He had no choice. For years the Trump defense has been that there was no collusion or communication between the campaign and Russia—such as Hope Hicks’s statement—and the revelations re Manafort, Flynn, and others have eviscerated that claim. So he’s pivoting to a different fallback argument: ‘O.K., even if there was collusion, Trump didn’t know about it.’”

There’s two problems with that claim, Katyal said. “First, it means the whole ‘witch hunt’ story Trump has been saying for years is false—if it is a witch hunt, Mueller found a coven. And second, since the Trump defense was entirely wrong on ‘no collusion,’ what is there to give us confidence about the accuracy of the Trump defense that he didn’t know about it?”

Eric Columbus, a former top-ranking attorney in the Justice Department, zeroed in on Giuliani’s perplexing remark about hacking. “To me, the biggest goalpost shift is Giuliani saying that there’s no evidence that Trump ‘committed the only crime you could commit here—conspired with the Russians to hack the D.N.C.,’” he told told me. “That’s far from the only possible crime, and it raises questions about whether Giuliani is trying to get out in front of new and damaging revelations about his client’s actions.”

Might Giuliani’s interview suggest an effort to get ahead of forthcoming revelations from the special counsel’s office? “Giuliani has made a habit of defending the indefensible, so this concession is startling,” said veteran Washington attorney William Jeffress. “It makes me wonder what Giuliani may have learned that the rest of us do not yet know.”

Giuliani’s freewheeling media strategy has often been self-defeating, but it also contains a certain logic. Giuliani has previously admitted that his cable-news appearances are for “public opinion, because eventually the decision here is going to be impeach, not impeach.” To that end, Giuliani’s latest on-air meltdown might be seen as the latest in a series of efforts to reset expectations for the president, continually lowering the bar for what might be perceived as unethical behavior.

Cuomo, on Wednesday, was not having it. “Crime is not the bar of accountability for a president,” he protested when Giuliani made that point. “It’s about what you knew, what was right and what was wrong, and what did you deceive about.” But Trump’s legal team seems to think that differentiation will be enough to save him from impeachment. “If you want to do an ethics investigation fine, do an ethics investigation,” Giuliani said, downplaying the legal impact of the Russia probe. “But you don’t need a special prosecutor for that.”

Those are “bogus talking points to the base,” not a legal argument, said former U.S. attorney and deputy assistant attorney general Harry Litman. “It has nothing to do with the law and even nothing to do with a persuasive rhetorical strategy to anybody who for instance remembers the things he said last week.”

But even bogus assurances for the base may come back to haunt Giuliani and his client, once Mueller delivers his final report. “If anything, I think that he is hurting the president’s defense, because now the president’s defense is ‘he didn’t know.’ Well, what happens if that falls apart?” the D.C. defense attorney told me. “It is like Bill Clinton. I will never forget when Bill Clinton wagged his finger in a press conference and said I never had sex with that woman. And then we all know what happened after that.”